Justice Minister says Alberta government won’t appeal; Court of Queen’s Bench Judge ruled woman’s charter rights breached by Alberta law, ordered remedy and costs

Alberta government won’t appeal ruling on transgender rights: Justice minister by Mariam Ibrahim, April 24, 2014, Edmonton Journal
The Alberta government won’t appeal a court ruling striking down parts of a provincial law dealing with how transgender people can change their birth certificates, Justice Minister Jonathan Denis said Thursday. Court of Queen’s Bench Justice Brian Burrows ruled Alberta’s Vital Statistics Act discriminates against transgender people because it requires them to prove they’ve undergone gender reassignment surgery before their birth certificate can be changed to accurately reflect their sex. In his decision, released this week, Burrows found the legislation is “inconsistent with the provisions of the Constitution of Canada and is, to that extent, of no force or effect.”

Denis said the government agrees with the ruling. “We intend to comply with it. On a personal note, I don’t think that a transgendered individual should have to go through a lengthy or frustrating court process just to change a birth certificate and the gender on that,” Denis said. The provincial government is poised to introduce amendments to the Vital Statistics Act that would fall in line with the ruling. Denis said that decision wasn’t prompted by the court case. “We expect to be in full compliance within the next couple of months,” he said.

The court decision comes after a years-long court battle brought by a transgender woman who was denied a birth certificate change because she hadn’t met the surgical threshold — which requires two sworn affidavits from medical doctors. The court directed the province to issue the woman — known as C.F. because of a court-ordered publication ban — an amended birth certificate reflecting her sex as female. Liberal critic Laurie Blakeman said the incoming amendments are long overdue, adding C.F.’s case shouldn’t have had to go through the court process.  [Emphasis added]

Judge rules transgender woman’s charter rights breached by Alberta law by Mariam Ibrahim, April 23, 2014, Edmonton Journal
In a landmark decision released Tuesday, an Alberta judge has struck down sections of a provincial law requiring proof of surgery before a transgender person’s birth certificate can be changed to accurately reflect their sex. The case was brought by a 23-year-old transgender woman referred to only as C.F., who was born a male but completed her transition to female in 2011.

She successfully changed her name to one that reflected her female identity, but when she applied for a new birth certificate, she received a document that still listed her gender as male. “I found that so hurtful that I literally didn’t look at it again after receiving it in 2011. I kept it in an opaque envelope until now,” C.F. said in an interview Wednesday. Her identity is protected by a court-ordered publication ban.

She appealed to Alberta’s director of vital statistics on the grounds her original birth certificate wrongly listed her sex as male and should therefore be corrected. The director disagreed, prompting C.F. to launch a Charter of Rights challenge against Alberta’s Vital Statistics Act on the grounds it discriminated against transgender people.

In his 14-page decision, Court of Queen’s Bench Justice Brian Burrows accepted C.F.’s arguments, ruling the legislation violated her rights and is “inconsistent with the provisions of the Constitution of Canada and is, to that extent, of no force or effect.”

Burrows ordered the director to issue a new birth certificate reflecting C.F.’s sex as female within 30 days.

The ruling comes as the Progressive Conservative government signals it will introduce amendments to the Vital Statistics Act that will scrap the requirement transgender people undergo surgery before their documentation can be changed. It will also scrap a definition within the Marriage Act describing marriage as an exclusively heterosexual union. Premier Dave Hancock says the amendments are expected to be introduced during the spring legislative session.

Josh Stewart, press secretary to Justice Minister Jonathan Denis, said the province’s interpretation of Burrows’ decision does not require an immediate change in practice. “We don’t have the authority of the law to do that now,” he said. Instead, transgender people wishing to have their birth certificates changed will still have to meet a surgical threshold or challenge the requirement in court, he said. “Birth certificates will continue to be issued with the sex recorded at birth. If a transgender person wants to receive a birth certificate with a different gender designated on it, they can bring a court application as was done in this case, or they can wait for the regulations we’re proposing to move forward,” he said. He said pending changes to the act will comply with the court decision, noting the ruling “does put pressure on us to change the law quicker.”

In its current form, the Vital Statistics Act requires proof of gender reassignment surgery in the form of two sworn affidavits provided by medical doctors. “What this legislation requires is that you not only submit to dangerous, risky surgery, but then actually attend for a humiliating genital inspection before two separate physicians, both of whom will make a value judgment about whether your genitals are sufficiently female,” C.F. said. “It’s like something from ages gone by. It’s very disturbing stuff.”

In his decision, Burrows found that the birth registration system established under the Vital Statistics Act — particularly how birth certificates are issued — contributes “to the disadvantage experienced by transgendered persons by perpetuating the prejudice and stereotyping to which they are subject.”

The Alberta government argued that by changing the original sex designation on a birth certificate to an identity a person has subsequently developed, it “sends the message that transgendered people need to hide (or be ashamed of) their true identity as transgendered persons who identify with the opposite sex.” Burrows rejected that argument, which he characterized as “to say the least, remarkable,” adding it “demonstrates the very stereotyping of which C.F. complains.”

“When asked, at the presentation of this application, how it could possibly matter that a person born male, but who has transitioned and lives female, have a birth certificate that says they are female, counsel for Alberta could offer no answer,” Burrows wrote in his ruling. For C.F., the decision means she won’t be subjected to constant questioning about her medical status, her sex, and improper male pronouns.

“People should be willing to stand up for themselves and take these legal steps rather than letting themselves be walked all over,” she said. … Jan Buterman, of the Trans Equality Society of Alberta, said the ruling is an important victory. [Emphasis added]

Decision in CF v Alberta

Snap from the ruling:

2014 04 22 CF v Alberta Charter Rights breach caused by Alberta law

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